Walter contrasted that approach with “the circle-the-wagons reaction to criticism so often adopted by organized lawyerdom in the U.S.” [Cartoonist Wiley has captured it well in this Non Sequitur strip.]

If you saw our praise last January for Toronto’s Polten & Hodder, because of the firm’s attitude about clients and fees, you’d know why I was quite hopeful, as I sought out the CBA’s “Futures Report,” (titled “Crystal Clear: New Perspectives for the Canadian Bar Association,” Aug. 2005; summary;full pdf. text) A closer look at the Report, however, suggests that bar associations (as well as trade and professional association in general) are pretty much the same everywhere, as Adam Smith (the real one from 18th Century Scotland) would surely have expected. Smith aptly noted:

“People of the same trade seldom meet together, even

for merriment and diversion, but the conversation ends in a

conspiracy against the public, or in some contrivance to

raise prices.”

Here are some of my discoveries, musings and conclusions.

Although they may eventually be willing to “accept valid criticisms,” the Report’s authors are keen to first “Examine inaccurate perceptions (for example, where the problems may stem from the legal system or a misunderstanding of the role of lawyers) and create a communications strategy to remedy them.” Yes, their “multi-level approach” to the image problem does mention “programs to change behaviours and attitudes of lawyers.” But, the thrust of their proposals to “elevate the relationship of the legal profession with the public” seems to be conducting public “education” and an “ongoing advertising and marketing campaign to promote a positive image of the profession and the ‘CBA lawyer’ [as “a good egg”!].” Indeed, the first proposal is to “Engage a professional team of public affairs consultants to help develop the strategy and manage the process of image enhancement.” [see Sec. 4.2.3]. This is not very different than their colleagues to the South.

On the plus side, CBA may be more frank than groups like the ABA regarding why the profession’s image concerns the Association. CBA worries that the poor public image is badly affecting the self-image of practitioners — “serious enough to cause lawyers to leave or think of leaving the profession.” But, much more is at work here. The Sec. 4.2.3 of the Report states:

“The overall effect of a poor image is to reduce public trust in and respect for the

profession. This can have negative economic consequences – consumer aversion

or ‘self-lawyering.’ It can also lead to public calls for regulatory intervention and the

end of self-governance” [with Sarbanes-Oxley given as a scary example].

Moreover, Sec. 2.4’s discussion of changing trends in client behavior asserts: “Perhaps the biggest threat on the demand side is the current poor imageof lawyers held by the public.” The great fear is that dislike for lawyers, coupled with technological advances, will result in more “self-lawyering.” The section concludes: “image is a burning preoccupation of the legal profession. As clients become even more sophisticated and informed, the profession will require a sophisticated strategy for renewal and enhancement. Without concerted action in this area in the future, there could be continued erosion of the overall demand for lawyers’ services.”

Of course, I’m not surprised that a bar association would act like a guild, but I am a bit taken aback that the CBA Futures Report is so upfront about it. For example, Recommendation #5 in the Report is that “The CBA must undertake initiatives that assist CBA members to derive economic value from a career in law.” That is an appropriate goal (within the limits of professional and fiduciary responsibilities). However, after suggesting that CBA’s work to improve the Association’s advocacy skills, the very first “macro-economic” proposal is that CBA

“Take all actions necessary to reduce or eliminate competition for legal work

from unregulated professional or para-legal organizations.”

They don’t even don the fig leaf of “consumer protection” like American bar associations in their attempt to eliminate non-lawyer competition. [see our Unauthorized Practice page; and our post on Arizona’s regulation of paralegals.]

Another disturbing theme in the Crystal Clear Futures Report is the fear that clients are becoming “more sophisticated.” CBA is worried that such clients will demand lower fees and unbundled services, and need far less “face time” with lawyers, while being far more willing to look at alternative providers or to do “self-lawyering.” This passage from Sec. 2.4 is a good example of CBA’s perspective:

“The price or cost of lawyers’ services continues to be a prime area of concern of clients.

As transparency increases in a post-Enron world, more and more of the mystery of pricing

is being eliminated and clients are looking for defensible levels of value for money. This may

mean notional benchmarking against other professional service providers or greater demand

“How much easier it is for a lawyer to conceive of his client not as an adult, but more like a child, or a “case” to be tried or settled. How much easier it is to take command, tell the client you’ll handle everything, and then get on with your work without having to expend time and energy nurturing a relationship between equals.”

“There can be no covenant between a lawyer and his client unless and until the lawyer is willing to encounter his client as an equal who has something of value to contribute to the relation. … The indispensable first step in forging a covenant between a lawyer and a client is the willingness of both parties to entrust themselves to the other.”

There are good, practical pointers, with the preface: “We have observed over the years

that the amount of time lawyers have to spend on files can be a source of frustration

not only for clients (who have to pay for all that time) but also for lawyers, who would

much rather spend their time applying analytical skills than coping with the administrative

details of a client’s file. EFFICIENCY is the name of the game in keeping your legal bills

down, way down.”

Beyond organizational similarities, Canadian lawayers are like their Americans counterparts in one very important way — many are very dissatisfied with their profession. Four distinct segments of the profession were surveyed for the Report: Law students, Lawyers in practice for 2 years, Lawyers in practice for 7-8 years, Lawyers in practice for 15 years. They found that (Sec. 2.3.3):

“Time spent in the profession undoubtedly colours a lawyer’s attitudes, expectations and intentions. Many first- and second-year lawyers are frustrated with being “out of the loop” for stimulating work, instead finding themselves relegated to a form of “hazing” (long hours, high volumes of routine work, relatively low pay). Time demands, workload and the lack of a personal life are seen as key stressors by all lawyers. In fact, even among lawyers with seven to eight years of practice, almost 70% are still thinking of leaving the profession. In a recent study of 10 large firms conducted by Catalyst Canada, a majority (62% of the women, 50% of the men) planned to change jobs within five years. Not surprisingly, lawyers with at least 15 years of practice were less likely to leave the profession but, even in this group, a majority had considered changing their area of practice (Ipsos-Reid).”

According to a CBA press release (Aug. 14, 2005), the Futures Committee identified three demographic influences that appeared to be dominant: the influx of more women into the profession, the increasing diversity of the profession, and the difference in attitudes and expectations between younger and older lawyers. “Work-life balance played a role in all of these trends”:

“The leading factor that will emerge to change the legal profession over the next ten years is the increasing importance associates will place on their personal and family time – the work-life balance issue,” said Kelly Smith of Rogers Moore in Toronto, the young lawyer representative on the Committee. “Associates will shun enormous billing pressure. Greater importance will be placed on interesting work, flexible work environments and alternatives to hourly billing, with the end result being more free time,” Mr. Smith added.

As is true in the United States, Canada’s legal profession continues to grow at a pace that may be unrelated to actual demand for lawyers (which might be why CBA has devoted large amounts of money to a lawsuit seeking to establish a right to civil legal representation for all Canadians). The Report notes (Sec. 2.3):

“According to Statistics Canada, the Canadian legal profession has grown almost ten-fold in the past 50 years (there were 9,000 lawyers in 1951, and 85,863 in 2002). By 2015, we can expect 125,000 practising lawyers in Canada. The rate of growth of the profession has been higher, for example, than that of physicians and surgeons (the population of lawyers grew by 109% in the 1970s compared to 42% for physicians and surgeons). There is anecdotal evidence that there may not be enough work to go around and that some law practices are failing or lawyers are simply leaving the profession. Despite this less than rosy outlook, law schools are graduating 3,500 new lawyers each year, of whom 2,500 are called to the Bar. While 10,000 lawyers in the 2001 census were over 55, there is no indication of how many will retire, and when.”

The Canadian Bar has perhaps seen an even more rapid influx of women members than in the United States. The Report states (Sec. 2.3.1):

In 1970, only one in 20 lawyers in Canada was female. Today, one of every three lawyers is a woman, with the majority under age 35. Only 10% of lawyers over 50 are women (the next large cohort of potential retirees). In 1990-91, female law students outnumbered males for the first time, and in 2003, 60% ofl aw school enrolees were women. In 2004, 56% of law school graduates were women.

Based on 2004 the longitudinal study of women lawyers in Ontario by Professor Fiona Kay et al. for the Law Society of Upper Canada (“Turning Points and Transitions: Women’s Careers in the Legal Profession”), the Report also notes that “women lawyers are more likely to have several legal positions over the course of their careers, and more likely to make lateral professional moves; and that there are very high attrition rates for women.not. Theories of women’s eventual flight from the profession still lack solid national research evidence. However, the Alberta study concluded that while men leave the profession in greater absolute numbers, women leave in greater proportion than do men.”

In response, the Futures Committee wants to do much more research to determine “whether the expectations, attitudes, behaviours, work patterns and support requirements of female lawyers will vary significantly from those of male lawyers and, if so, how they will affect the profession and the practice of law.” They say that “The legal profession cannot simply resign itself to the attrition rate of women; the challenge must be to focus on a culture of equality for the future.” Therefore, the Report wants to “develop new strategies to ensure that equity is achieved in the likelihood of the genders achieving similar levels of satisfaction during the course of a legal career.”

I’m not certain that the forces that imbue women lawyers with more of a willingness, ability, or need to move around within the profession (in search of a better fit), or to leave it, are necessarily bad. Equal misery might not be a goal worth pursuing. Perhaps male lawyers should be looking for ways to get out of their ruts, rather than hoping that female lawyers will stay or join them.

It looks to me that Canadian lawyers and bar associations are quite similar to their American

counterparts. I hope we might learn from eachother how to find more satisfying careers, while serving clients better and putting the clients’ interests first.

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